rajeev kumar singhal v. mukul garh and others

Vivek Singh Thakur, J. - Present petition has been preferred by the petitioner/plaintiff against the impugned order dated 7.11.2017 passed by learned Senior Civil Judge, Sirmaur District at Nahan, dismissing the application filed by the petitioner/plaintiff under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure (herein after referred to as "CPC" for short) for amendment in the plaint seeking insertion of new para 9(a) in the plaint in Civil Suit No. 159/1 of 2013/11, titled as Rajeev Kumar Singhal Vs. Mukul Garg.

2. I have heard learned counsel for the parties and perused the documents placed on record.

3. It is undisputed fact that petitioner/plaintiff along with performa respondents, being siblings of deceased Hari Saran S/o Krishan Chand S/o Kanshi Ram and defendant No. 2, being son of Sadhu Ram, S/o Kanshi Ram had inherited the suit property i.e. House situated on land comprising Khata No. 19/Khatauni No. 35, Khasra No. 982 measuring 105.82 Sq. meters situated at Hindu Ashram Road Mohal Naya Bazar, Nahan, District Sirmour, H.P., initially owned and possessed by their common ancestor Kanshi Ram . Defendant No. 2 had sold his share (half of suit property) to defendant No. 1 on 7.4.2010 vide registered sale deed No. 302 of 2010. Thereafter petitioner/plaintiff along with performa respondent No. 5/co-plaintiff Naveen Kumar had preferred civil suit (present matter) against defendants No. 1 and 2. However, during pendency of suit, defendant No. 1 had further sold his half share to defendants No. 3 and 4 on 30.3.2013 vide registered sale deed No. 253 of 2013, whereupon defendants No. 3 and 4 were also added as defendants and suitable amendment in the suit was carried out and finally a suit seeking declaration that sale deed No. 302 of 2010 dated 7.4.2010 executed by defendant No. 2 in favour of defendant No. 1 and sale deed No. 253 of 2013, dated 30.3.2013, executed by defendant No.1 in favour of defendants No. 3 and 4 are contrary to law and does not affect the preferential rights of plaintiffs and performa defendants and defendants No. 1, 3 and 4 are not entitled for joint possession or joint user of the common undivided family property in the shape of dwelling house of the plaintiff and defendant No. 2 with a consequential relief of permanent injunction restraining the defendants not to cause interference in possession of plaintiffs and performa defendants in the suit property and a relief of mandatory injunction seeking direction to defendants No. 1, 3 and 4 to execute the sale deed of half share in favour of plaintiff and performa defendants after receiving sale consideration of Rs.11,00,000/- is pending adjudication before the trial Court.

4. Plaintiffs are asserting their right on the suit property sold by defendant No. 2 on the basis of their preferential rights to acquire the same being a dwelling house belonging to undivided family and in the plaint direction has been sought to defendants No. 1, 3 and 4 for transferring the property in dispute in the names of plaintiff and performa defendants by claiming their entitlement for acquisition of the said property under Section 22 of the Hindu Succession Act.

5. Defendants No. 1, 2 , 3 and 4 have field their separate written statements, wherein besides other objections, common stand in all these written statements is that before entering into sale with defendant No. 1 and further sale in favour of defendants No. 3 and 4, plaintiffs had been contacted and asked by defendants to purchase the same and the sale deeds were executed only after refusal of plaintiff and performa defendants to purchase the same and plaintiffs were not ready and willing to purchase the said share at any point of time.

6. During pendency of the trial, when suit was listed for recording of evidence of remaining witnesses of defendants, plaintiffs had filed an application for amendment in the plaint to insert para 9(a) therein, to claim the right on the basis of Section 4 of the Partition Act, 1983 and Section 44 of the Transfer of Property Act, 1882, in addition to, claiming the right under Section 22 of the Hindu Succession Act by stating that on account of inadvertent and bonafide mistake of the advisors of the plaintiff and legal experts and also despite due diligence, some important legal plea could not be taken in the plaint and therefore, a necessity has arisen to move the application for insertion of such pleas by way of amendment.

7. Defendant/Respondent No. 1 had opposed the amendment sought by the petitioner/plaintiff on the ground that proposed amendment, by changing the basic character of the case, will lead to a denovo trial, as there is complete variation in the ingredients of Section 22 of the Hindu Succession Act and Section 4 of the Partition Act and further that right under Section 4 of the Partition Act was available to plaintiff/petitioner during pendency of suit filed by defendant/respondent No. 1, which was abandoned by the plaintiff at that time and he had opted for his preferential right of repurchase under Section 22 of Hindu Succession Act and now the said suit already stands withdrawn. The amendment had also been opposed being barred by limitation. Defendant No. 1 had also contended that suit property had already been divided and thus amendment sought by the plaintiff is irrelevant. Finally it is contended that plaintiff was being represented by a legal expert, a very senior Advocate, who had been contesting the case of the plaintiff diligently and therefore, plea of plaintiff was not a bonafide mistake and/or any lapse attributable to the counsel of the plaintiff and therefore, there was lack of due diligence on the part of plaintiff.

8. Defendants No. 3 and 4 had filed their joint reply and had opposed the proposed amendment being unnecessary, irrelevant, inconsistent and malafide, filed to harass the defendants unnecessary by dragging the proceedings which would amount changing the basic structure, cause of action in the suit causing a serious prejudice and unjust to defendants, not compensable in terms of costs and would amount to encourage baseless, unnecessary, frivolous and forced litigation and that proposed amendment was hit by delay and laches and that keeping in view the stage of suit, plaintiff was not entitled for amendment, which were not in fact pure legal pleas and the property involved in transactions in question had lost its character of dwelling house. Lastly, these defendants had also contended that plaintiff had taken services of a Senior Lawyer, who was diligently contesting the case of the plaintiff, therefore, the lapse to plead the amendment proposed in original plaint was neither bonafide mistake nor a lapse attributable on the part of the said counsel.

9. Learned counsel for petitioner/plaintiff has pleaded that plaintiff had engaged a Senior well experienced Lawyer for filing and contesting the suit on his behalf, but he had failed to incorporate the necessary legal pleas to ascertain the right of plaintiff and performa defendants/respondents in the suit property by referring the relevant provisions of statute and the proposed amendment would not change the nature of suit in any manner and there was no lapse in conducting the case with due diligence on the part of plaintiff. It is contended that in view of the facts and circumstances of the present case, the amendment deserves to be allowed at this stage also.

10. Learned counsel for the petitioner has relied upon Pankaja and another Vs. Yellappa (dead) by LRs. and others, (2004) 6 SCC 415; Rajesh Kumar Aggarwal and others Vs. K.K. Modi and others, (2006) 4 SCC 385; Baldev Singh and others Vs. Manohar Singh and Another, (2006) 6 SCC 498; Andhra Bank Vs. ABN Amro Bank N.V. and others, (2007) 6 SCC 167; Surender Kumar Sharma Vs. Makhan Singh, (2009) 10 SCC 626; Abdul Rehman and another Vs. Mohd. Ruldu and others, (2012) 11 SCC 341 and Mahila Ramkali Devi and others Vs. Nandram (dead) through Legal Representatives and others, (2015) 13 SCC 132.

11. Learned counsel for the defendants has contended that the proposed amendment is not just and fair and it will change the nature of the suit completely and real controversy in the suit is that whether plaintiff is entitled for benefit of provisions of Section 22 of the Hindu Succession Act or not and the proposed amendment for claiming the right under Section 4 of the Partition Act and Section 44 of the Transfer of Property Act, is not akin to real controversy and the plaintiff is now coming with a new plea which had already been abandoned by him during pendency of partition suit preferred by defendant No. 1 and it is not for the first time the plaintiff is filing application for amendment, as an application for amendment was also filed at earlier point of time. Referring judgments in Chander Kanta Bansal Vs. Rajinder Singh Anand, (2008) 5 SCC 117 and J. Samuel and others Vs. Gattu Mahesh and others, (2012) 2 SCC 300, it is argued that plaintiff had failed to exercise due diligence as required under Order 18 Rule 17 CPC and there is no satisfactory explanation for not incorporating the proposed amendment in the plaint at earlier point of time and he has supported impugned order passed by the trial Court for the reasons stated therein.

12. The Apex Court in Chander Kanta Bansal's case, has explained the meaning of words due diligence, which reads as under:-

"16. The words "due diligence" have not been defined in the Code. According to Oxford Dictionary (Edn. 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (18th Edn.), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edn. 13-A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs."

13. A prudent man, intending to file a suit for asserting his right in some property, is supposed to contact and engage a best lawyer within his reach. He is not supposed to go through the statutes and law books before or after filing the suit as it is the job of legal expert, the Advocate, engaged by him. In present case, the plaintiffs have performed their part with due diligence, which has also been admitted by defendants in their reply to the application for amendment that plaintiff/petitioners had engaged well experienced very senior Advocate to contest the suit on their behalf, who was a legal expert. It is not a case where the plaintiffs are contesting their claim on their own or engaging an inexperienced Advocate. Therefore, plea of the defendants that there is lack of due diligence on the part of plaintiff, is not sustainable.

14. It emerges from the pronouncements of Apex Court, relied by the parties, that the Court has wide enough jurisdiction to allow the amendment of pleadings, even in those cases where there has been substantial delay in filing the amendment application. Delay and laches in making an application for amendment cannot be a ground to refuse amendment, if granting of an amendment really subsurves the ultimate cause of justice and leads to avoid further litigation and there can be no strait jacket formula for allowing and disallowing the pleadings as each case depends on the factual background of that case. Dominant purpose of allowing the amendment is to minimize the litigation. Object of Rule 17 CPC is that all amendments, that may be necessary for determining the real question in controversy between the parties, may be allowed, if it does not cause injustice or prejudice to other side as the rule of amendment is essentially a rule of justice, equity and good conscience and therefore, power of amendment should be exercised in larger interest of doing full and complete justice to the parties, before the Court and Courts should be extremely liberal in granting the prayer for amendment of pleadings, unless serious injustice or irreparable loss is caused to other side, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted by another, in order to change, by means of amendment, the subject matter of the suit and even after commencement of the trial, Court may allow amendment, if it is satisfied that in spite due diligence, party could not have raise the matter before the commencement of trial. It is also well settled that rule of procedure is intended to be handmade to the administration of justice and a party cannot be refused just relief merely because of mistake, negligence, inadvertence or even infraction of rules of procedure and Court always gives relief to amend the pleading of the party, unless it is satisfied that the party applying was acting malafide or that by his blunder he has caused injury to his opponent which cannot be compensated for by an order of cost, as power to grant amendment to pleading is intended to serve the needs of justice and is not governed by any narrow or technical limitations.

15. In Andhra Bank and Pankaja's case, it has also been held by the Apex Court that where there is a dispute with respect to merit of the proposed amendment and issue is arguable one such disputed question could be made subject matter of issues after allowing the amendment prayed for.

16. The Apex Court in Chakreshwari Construction Private Limited Vs. Manohar Lal, (2017) 5 SCC 212 has summarized some important factors for dealing with the application for amendment, which reads as under:-

"13. The principle applicable for deciding the application made for amendment in the pleadings remains no more res integra and is laid down in several cases. In Revajeetu Builders and Developers Vs. Narayanaswami & Sons, (2009) 10 SCC 84, this Court, after examining the entire previous case law on the subject, culled out the following principle in para 63 of the judgment which reads as under:

(SCC p. 102)

"63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

(1) whether the amendment sought is imperative for proper and effective adjudication of the case;

(2) whether the application for amendment is bona fide or malafide;

(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive."

17. The Apex Court in State of Bihar Vs. Modern Tent House and another, (2017) 8 SCC 567 has allowed the amendment of written statement after completion of evidence and after considering certain factors, some of which may be relevant in present case also, which reads as under:-

"8. We have perused the amendment application filed by the appellants. We find that firstly, the proposed amendment is on facts and the appellants in substance seek to elaborate the facts originally pleaded in the written statement; secondly and in other words, it is in the nature of amplification of the defence already taken, thirdly, it does not introduce any new defence compared to what has originally been pleaded in the written statement; fourthly, if allowed, if would neither result in changing the defence already taken nor will result in withdrawing any kind of admission, if made in the written statement; fifthly, there is no prejudice to the plaintiffs, if such amendment is allowed because notwithstanding the defence or/and the proposed amendment, the initial burden to prove the case continues to remain on the plaintiffs, and lastly, since the trial is not yet completed, it is in the interest of justice that the proposed amendment of the defendants should have been allowed by the Courts below rather than to allow the defendants to raise such plea at the appellate stage, if occasion so arises."

18. In present case, petitioner/plaintiff has put forth his claim on the property, on the basis of preferential right to acquire the same, being coowner of the property in question. Section 22 of the Hindu Succession Act, 1956, Section 4 of Partition Act, 1993 and Section 44 of Transfer of Property Act recognize such preferential right under the given circumstances therein. The basic nature of the suit is assertion of claim of plaintiff and performa respondents on the basis of preferential right being the co-owner in the property jointly owned and possessed with them, earlier by defendant No. 2, thereafter defendants No. 1, 3 and 4. Therefore, claiming preferential right under the aforesaid provisions of law, cannot be said to be mutually exclusive, as these provisions confer right upon the co-owner to have preferential right in the property for fulfilling ingredients contained therein and therefore, claim put forth under these provisions simultaneously cannot be said to be in conflict and inconsistent with each other. So far merit of claim of plaintiffs is concerned, the same would be subject matter of trial. As discussed supra, delay in taking the plea as proposed to be incorporated by way of amendment, cannot be attributed to the plaintiff and controversy between the parties is that as to whether plaintiff/petitioner and performa respondents are entitled for preferential right, if any, and to adjudicate this issue between the parties complete in all respect, the proposed amendment shall be helpful and therefore, it would be necessary to determine the real controversy between the parties, once for all to avoid multiplicity of litigation.

19. In spite of incorporation of the proposed amendment in the plaint, there is no change in the cause of action or nature of relief sought in the basis for asserting the right by the plaintiff in the suit property and therefore, by proposed amendment, there will be no constitutional or fundamental change in the nature and character of the case. The amendment sought is bonafide and imperative for proper and effective adjudication of the case and it will not lead to injustice, rather it will goes to avoid multiplicity of litigation. The claim of plaintiff on the preferential right is already on record and defendant would also have right to rebut the plea of plaintiffs even after amendment, therefore, the amendment sought will not cause any prejudice to the defendants.

20. The objection with respect to applicability of Section 4 of the Partition Act or Section 44 of the Transfer of Property Act and other issues like limitation for invoking such provisions are to be adjudicated during the trial by framing specific issues in that regard.

21. There is also a mistake, may be clerical, in the impugned order. In the operative portion, of the order, immediately after passing of order of rejection of application for amendment, it has been mentioned that "accordingly, the application is allowed and leave is granted to amend the plaint." Application cannot be accepted and rejected simultaneously. However, in view of adjudication of issue of amendment by this Court, no clarification in this regard is necessary.

22. The trial Court has failed to consider the prayer of the petitioner/plaintiff and law in right perspective and thus the impugned order is set aside and the application for amendment filed by petitioner/plaintiff is allowed, subject to payment of cost of Rs.3,000/- to be paid to defendants No. 1, 3 and 4 contesting this petition in this Court, in equal shares i.e. Rs.1000/- each and amendment sought is permitted to be carried out in the plaint and the partiers are directed to appear before the trial Court on 2nd April, 2019. Plaintiff is also directed to file the amended plaint, if not already filed, in the trial Court on or before next date of hearing, failing which application for amendment shall be deemed to have been rejected. Written Statement(s) to the amended plaint by defendants shall be filed within four weeks and replication(s) thereto, if any, shall be filed within two weeks thereafter, either party failing in filing written statement(s) or replication(s) thereto within aforesaid period shall loose the right to file the same. The trial Court, after completing the pleadings with respect to amendment allowed, shall frame issues, if required and desired so in view of amendment allowed and thereafter shall grant maximum two opportunities to the plaintiffs to lead their evidence only with respect to the amendment allowed and on failure of plaintiffs, on their part, to lead evidence, their right to lead evidence shall be closed. Needless to say that on arriving at the stage at which the trial has arrived as of now, i.e. recording of evidence of defendants, the defendants shall have right to lead evidence in rebuttal.

23. The petition is allowed in the aforesaid terms.